Informant Confidentiality in the Corporate University

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Informant Confidentiality in the Corporate University
By Robert DingwallSocial Science Space
Published: January 30, 2012

UK newspapers have belatedly picked up on a troubling precedent that is crystallizing in the US courts. Boston College has been ordered to disclose recordings from an archive of interviews with former IRA members to the Police Service of Northern Ireland. The PSNI believe these recordings may contain information relevant to their investigation into a 1972 murder. The researchers who compiled them apparently promised their informants life-long confidentiality, while Boston College claims that they were only authorized to promise confidentiality so far as US law permits. When the project began in 2001, however, US law was assumed to set a high threshold for disclosure, following precedents in relation to journalists, under the provisions of the First Amendment and its protection of speech. The matter has not been helped by the Federal District judge’s handling of the case, where he refused to allow the researchers to be joined as parties. Boston College appears to have offered only a pro forma defence and declined to appeal the judge’s order. However, the researchers were successful in getting the Federal Appeal court to allow them to intervene and to receive further argument. The hearing is scheduled for March but the judge has set a timetable for disclosure that effectively pre-empts the opportunity for Supreme Court review, if the researchers lose the appeal. These actions have been widely criticised in the US press, which sees the low threshold set by the judge as a threat to their own constitutional protections.

The case, however, raises wider issues about the problems of social research in corporate universities. Writing in the Times Higher Education, the outgoing President of the British Sociological Association castigates the Boston researchers for not recognizing that confidentiality cannot be guaranteed – ‘informed consent forms always explain that confidentiality will be maintained only to the full extent provided under the law.’ In doing so, he fails to acknowledge the impact of the change from professional to organizational responsibility that has occurred during the last 35 years. The scholars who trained me were men and women of great integrity and insisted on the personal responsibility of the researcher. You did what was required to protect your informants. In the US, graduate students like Mario Brajuha and Rik Scarce accepted imprisonment for contempt of court rather than disclose their field notes. Laud Humphreys moved the data from Tearoom Trade out of state and eventually destroyed it when law enforcement agencies became interested in gaining access to support the criminal prosecution of the homosexual men he had observed.

The corporate university’s regulation of research transfers legal accountability to the institution. Once the research is licenced by the university’s internal review procedures, the university is necessarily associated with it. I gather, for example, that it is now not uncommon for UK institutions to demand that copies of all original data should be deposited with them in case of litigation. The original researcher has no effective veto on access, regardless of the risks to themselves or to their informants. Universities may still make principled decisions. Stirling’s resistance to the Freedom of Information case brought by Philip Morris is a good example. However, the stakes for them are fundamentally different. Corporate actors have reputations to manage and deep pockets to drain in fines and legal costs. Their responses to litigation are necessarily more pragmatic, as the behaviour of Boston College shows. It is enough simply to go through the ritual of establishing that compliance with a disclosure request is not voluntary but made under a court order, without considering the wider implications of that order for the safety of investigators and the long-term societal benefit of free inquiry.

…in the interests of protecting freedom of scholarly inquiry, the extraordinary step of subpoenaing confidential academic research must be avoided if at all possible, a step to be taken only in the most exigent of situations and as a last resort. Academics play an important role in society for the enlightenment of current and future generations; they are not mere detectives bedecked in tweed and working for governments…

Academics are not used to standing up to courts… But reporters take the drastic step of almost welcoming jail sentences for a reason; if they do not make it tremendously inconvenient, and embarrassing, for the government to seek information from them, then investigative journalism would not exist, for confidentiality would be impossible.

We could leave social investigation to journalists but would we not be poorer as a society, if we were unable to place ‘deviant behaviour’ in a wider theoretical framework than that permitted by the constraints of everyday media production? Social researchers can properly inconvenience and embarrass governments. Do corporate universities have the same interests?

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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